Jagannath Ghosh v. Pasupati Nath Ghosh — 1992 DIGILAW 436 (CAL)

Order: This application is directed against the order dt. 13-09-1988 passed by the learned Metropolitan Magistrate, 12th Court, Calcutta in Case No. C/372 of 1984 under sections 323/504/448/427 of the Indian Penal Code allowing opposite party Pasupati Nath Ghosh to conduct the prosecution in place of the complainant Indrani Ghose who had died during the pendency of the case. 2. The accused/petitioners are being tried for the offences under sections 323/504/448/427 of the Indian Penal Code and it is a summons procedure case. The complainant had died on 8th March 1988. Before that, examination of prosecution witnesses was over and the prosecution was closed on 18th January 1988. Defence declined to adduce any evidence. On 23rd March 1988 one Pasupati Nath Ghosh (O.P. in this revisional application) filed an application praying for permission to continue and conduct the prosecution in place of the complainant who had died. On 16th April 1988 one Chunilal Ghose also filed a similar application seeking permission to continue and conduct the prosecution. After hearing the learned Advocates of all sides, the learned Magistrate, by his impugned order, allowed the application filed by Pasupati Nath Ghose and granted him permission to conduct the case in place of the deceased complainant. He rejected the petition of Chunilal Ghosh on the ground that he is the father of accused Goutom Ghosh (not a party to this revisional application). The learned Metropolitan Magistrate then posted the case for argument on 27th September 1988. 3. From the trend of argument of Mr. Bose, learned counsel for the petitioners, I am getting the impression that the accused/petitioners are not bothered about their conviction but rather they are worried about the consequences that will follow in the event of their acquittal. He has submitted that all the offences in this case are compoundable. So on the death of the complainant there is none with whom the offences may be compounded by the accused. As per sub-section 8 of Section 320 of the Code of Criminal Procedure, the composition of an offence shall have the effect of an acquittal of the accused. So the learned counsel has posed this question, 'On the death of the complainant with whom I am to compound the offences?'. As per sub-section 8 of Section 320 of the Code of Criminal Procedure, the composition of an offence shall have the effect of an acquittal of the accused. So the learned counsel has posed this question, 'On the death of the complainant with whom I am to compound the offences?'. He goes on to submit that there is no provision in the Code of Criminal Procedure for substitution of the complainant unlike the substitution of the plaintiff under the Code of Civil Procedure. Both these Codes were enacted by the Parliament and if the Parliament so intended then the Parliament would have made a provision in the Code of Criminal Procedure for substitution of the complainant in case of his/her death. Mr. Bose then referred to S. 378(4) of the Code of Criminal Procedure which provides that in case of an acquittal in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Mr. Bose has laid stress upon the word 'complainant' appearing in this sub-section and has tried to impress that it is only the complainant who can prefer an appeal before the High Court against an order of acquittal, and none else. So when the complainant is dead and no substitution is envisaged in the Code, the Criminal proceeding will come to an end as provided under Section 256 of the Code. Mr. Bose has laid emphasis on sub-section 2 of Section 256 and has submitted that on the death of the complainant, the cause does not survive and the trial court has no other alternative but to dismiss the case and to acquit the accused. Mr. Bose has placed reliance on 1980 Cr. L. J. 1405, Subbanna vs. Dyavappa. Agreeing with the decision of this Court in 1964(1) Cri. L. J. (A.I.R. 1964, Calcutta 64) Nanilal Samanta vs. Rabin Ghosh, the Karnataka High Court has held that the 'complainant' referred to in Section 256 of the Code has to be understood as the one whose sworn statement was recorded under s. 200 of the Code. Agreeing with the decision of this Court in 1964(1) Cri. L. J. (A.I.R. 1964, Calcutta 64) Nanilal Samanta vs. Rabin Ghosh, the Karnataka High Court has held that the 'complainant' referred to in Section 256 of the Code has to be understood as the one whose sworn statement was recorded under s. 200 of the Code. On the death of the complainant no other person can be deemed to be a complainant; however, interested he may be in the case and, therefore, when summons was issued on the basis of the complaint and on the day appointed for the appearance of the accused the complainant does not appear because of his death, the only alternative left to the Magistrate is to acquit the accused in view of the clear and unambiguous provisions of Section 256. Mr. Bose then comes to the provision of Section 250 of the Code. As provided under s. 250, if the trying Magistrate discharges or acquits all or any of the accused and he is of opinion that there was no reasonable ground for making the accusation against them or any of them, he may by his order of discharge or acquittal call upon the complainant to show cause why he should not pay compensation to such accused for making false accusation. Mr. Bose submits that if the trial court acquits the accused/petitioners and at the same time holds the opinion that accusation was groundless then a legal right will accrue to the accused/petitioners to claim compensation from the complainant and right can be enforced only against the real complainant and not against the substituted complainant. Therefore, in view of this future contingency also, Mr. Bose submits, the substitution of the complainant who is dead is not permissible under the law. 4. Mr. Mukherjee, learned counsel for the opposite party has admitted that there is no specific provision in the Code whereby substitution of the complainant upon his death is prescribed. But he has submitted that the Code is not entirely silent on the question of substitution and it can be inferred from the various provisions contained in the Code. He has referred to the provision under sub-section 2 of Section 394 of the Code. This Section provides for abatement of appeal on the death of the accused. But he has submitted that the Code is not entirely silent on the question of substitution and it can be inferred from the various provisions contained in the Code. He has referred to the provision under sub-section 2 of Section 394 of the Code. This Section provides for abatement of appeal on the death of the accused. The proviso lays down that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. He has also referred to Section 199 of the Code. This Section provides for defamation. The proviso under sub-section 1 of this Section provides that where a person aggrieved by the offence enumerated in Chapter-XXI of the Indian Penal Code is under the age of 18 years or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. Mr. Mukherjee then referred to Section 256 and has laid stress upon the words "unless for some reason he thinks it proper to adjourn the hearing of the case to some other day" appearing in sub-section (1). He has also relied upon the proviso under sub-section 1 which lays down that if the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Mr. Mukherjee then refers to AIR 1967 S.C. 983 , Ashwin vs. State of Maharastra. In this case HIDAYATULLA-J (as His lordship then was) speaking for the Court has observed that what happens on the death of a complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code. Mr. Mukherjee then refers to AIR 1967 S.C. 983 , Ashwin vs. State of Maharastra. In this case HIDAYATULLA-J (as His lordship then was) speaking for the Court has observed that what happens on the death of a complainant, in a case started on a complaint has to be inferred generally from the provisions of the Code. There is no provision in the Code or Chapter 18 thereof about acquittal or discharge of the accussed on failure of the complainant to attend, which is deliberate departure from Chapters on trials of summons and warrant cases, suggesting that Magistrate should proceed with committal enquiry although complainant is absent. Though Court cannot substitute a new complainant, it has power under section 495 to authorise conduct of prosecution by any person. Having thus observed, it was held that the committal enquiry of the accused who was charged under sections 493 and 496 of the Indian Penal Code did not abate on account of complainant's death after filing of complaint and that the mother of the complainant could be allowed to conduct the prosecution. Mr. Mukherjee has referred to AIR 1969 Mysore 221, Subbamma vs. Kannappachari. In this case a Learned Single Judge of the Mysore High Court has relied upon AIR 1967 S.C. 983 (supra) and AIR 1926 Bombay 178, Mohamed Azam vs. Emperor. The Bombay High Court took the view that even in case of non-cognizable offence instituted upon a complaint it would be within the discretion of the trying Magistrate in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. After discussing the decision of the Supreme Court and the Bombay High Court the Learned Single Judge of the Mysore High Court has observed as follows: "Having regard to the fact that there is no specific provision to the effect that on the death of the complainant the complaint abates, it seems to me that the view taken in AIR 1926 Bombay 178 should be accepted as it is supported by sound reasons, if I may say so with great respect". Mr. Mukherjee has also referred to 1989 Cri. L.J. 1856, (J & K), Ashok Kumar vs. Abdul Latif. Mr. Mukherjee has also referred to 1989 Cri. L.J. 1856, (J & K), Ashok Kumar vs. Abdul Latif. In this case, the Jammu and Kashmir High Court has held that the death of complainant cannot ipso facto bring about the termination of the criminal proceedings and in that case, the Magistrate is authorised to exercise his powers under s. 495 Cr. P. C. by substituting another person Or prosecution agency for the conduct of the criminal case. Merely on the death of the complainant, the complaint filed by him cannot be dismissed nor the accused acquitted or discharged under s. 247 or 259 Cr.P.C. It further observed that there is no provision for bringing on record the legal representatives of a party in criminal proceedings but as the penal offence committed by a person unless from the nature of it is' personal to the complainant, is an offence against the society and has to be prosecuted in accordance with the provisions of law till its final disposal. While handing down this ruling the Jammu and Kashmir High Court has followed AIR 1981 Calcutta 818, 5mt. Mayabati Halder vs. The Rent Controller Calcutta. By referring to the various provisions under different sections of the Code and also the ruling hereinbefore mentioned. Mr. Mukherjee has submitted that it is within the competence of the trying Magistrate to allow substitution in place of the complainant who is dead to conduct the case. 5. Mr. Bose has. however, submitted that the decision rendered by the Supreme Court in AIR 1967 S. C. 983 was in respect of the committal enquiry as provided in the Code of Criminal Procedure of 1898. The amended Code of 1973 coming into force on 1st April 1974 has practically repealed the committal procedure and so Mr. Bose has submitted that the opposite party cannot derive any support from this ruling. Mr. Bose has also distinguished the ruling handed down by this Court in AIR 1981 Calcutta 818. This is a case under West Bengal Premises Tenancy Act 1956. Section 31 of this Act inter alia provides that a complaint may be filed by the tenant against his/her landlord for wilful disturbance of the easement annexed to the premises or interferes with any supply or service comprised in the tenancy of such premises and this Section also contains the penal provision for such offence. Section 31 of this Act inter alia provides that a complaint may be filed by the tenant against his/her landlord for wilful disturbance of the easement annexed to the premises or interferes with any supply or service comprised in the tenancy of such premises and this Section also contains the penal provision for such offence. It has been held by this Court that on the death of the tenant, the Rent Controller has the power to allow the legal representative of the deceased to continue the proceeding. Mr. Bose has drawn my attention to the definition of 'Tenant' in Section 2(h) of the Act of the heirs of the tenant in the event of his/her death. 6. Not to be outwitted by the submissions of the learned counsel for the petitioner, Mr. Mukherjee has drawn my attention to sub-section 4(b) of Section 320 of the Code which lays down that when the person who would otherwise be competent to compound an offence under this Section is dead, the legal representatives, as defined in the Code of Civil Procedure, 1908 (5 of 1908), of such person may, with the consent of the Court, compound such offence. It is therefore, seen that legislature had the foresight to make such a provision. 7. I find sufficient force in the submission of Mr. Mukherjee. Consequent to the provision of sub-section 4(b) we may come to a logical presumption that in the event of a finding by the trial court that the case was vexatiously instituted and the trial court awards compensation to be paid to the accused then it will be the burden upon the person who is allowed to conduct the proceeding to pay such compensation. In this connection it is worth-mentioning to note what the Law Commission has observed, "It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial discretion of the Court, and, the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily". 8. We think, in the circumstances, that the decision should be left to the judicial discretion of the Court, and, the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactorily". 8. In view of my foregoing discussions I hold that the learned trial court has not erred in law in allowing the opposite party, Pasupati Nath Ghosh to continue and conduct the prosecution in place of the complainant who died on 8.3.1988. As such I find no merit in this revisional application which stands rejected and the stay order dated 2.12.1988 is hereby vacated. 9. It pains me to observe that this summons procedure case which was initiated on 11th October 1984 could not reach its finality even by the end of 1992. The application for substitution of the complainant was filed on 23.3.1988 and the decision was taken by the learned trial court on this application only on 13.9.1988, that is, after about 6 months from the date of filing. The revisional application was filed in 'this Court on 23.12.1988. A learned Single Judge directed that the matter be listed as 'Contested Application' on 31.1.1989. But the record does not disclose that the matter was listed on that date. It went into a long period of hibernation and only on 9.11.1992 the matter was listed before me. If such delay is caused in disposal of such matters, people's faith in the Court will get a rude jolt and the last vestige of effective functioning of judicial system will be gone. 10. Let a copy of this judgment and order be sent immediately to the court below with a direction to expedite the disposal of the case, preferably within a period of 2 months from the date of receipt of communication of this order. Revisional application rejected. Direction given.